Citation NR: 9737538
Decision Date: 11/07/97 Archive Date: 11/12/97
DOCKET NO. 96-51 931 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to a compensable evaluation for bilateral knee
tendonitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The veteran served on active duty from October 1986 to
December 1990.
This appeal arises from a June 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan which granted service connection and
assigned a noncompensable evaluation for bilateral tendonitis
of the knees.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a compensable evaluation for
bilateral tendonitis is warranted. Essentially, it is
maintained that this disorder is productive of pain, and
discomfort. She argues that the disorder interferes with her
job, and her home life, and that a compensable evaluation is
therefore warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that a the veteran’s bilateral knee
tendinitis warrants a 10 percent evaluation for each knee.
FINDING OF FACT
Tendonitis in each of the veteran’s knees is productive of
pain, and patellar tenderness.
CONCLUSION OF LAW
The schedular criteria for separate 10 percent evaluations
for each of the veteran’s knees disabled by bilateral
tendonitis is warranted. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes
5024, 5257 (1996); DeLuca v. Brown, 8 Vet.App. 202 (1995).
REASONS AND BASES FOR FINDING AND CONCLUSION
A review of the service medical records reveals that the
veteran was treated for persistent bilateral knee pain in
1989 and 1990. Physical examinations diagnosed mild patella
femoral malalignment. X-ray study in November 1989 of the
right knee was notable for a small spur at the inferior
patella.
The veteran was seen for a VA compensation examination in May
1996. She reported a history of bilateral tendonitis since
1988 or 1989. Her symptoms were reported to include anterior
knee pain, patella femoral knee pain, infrapatellar knee
pain, and soreness. She described periodic symptoms of give
away, and that physical activity and weather changes
aggravated her symptomatology. The veteran did not use a
brace or a cane. Physical examination revealed some
anterior, and patellofemoral knee pain. Over the
infrapatellar ligament tenderness was noted. There was no
evidence of medial lateral joint line pain, effusion, or
significant crepitation. The range of motion in each knee
was from 0 to 135 degrees, and each knee was stable. X-ray
study disclosed no significant abnormality. The diagnosis
was bilateral tendonitis of the knees.
The veteran presented sworn testimony before a hearing
officer at the Cleveland, Ohio RO in February 1997. She
reported that she suffered from constant knee pain and
tenderness which caused her to lose about three days of work
per month. She also described how her knee disorders
affected her daily living.
Disability evaluations are determined by the application of
the VA’s Schedule for Rating Disabilities, which is based on
the average impairment of earning capacity. Separate
diagnostic codes identify the various disabilities. 38
U.S.C.A. § 1155. Where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern. Francisco v. Brown, 7 Vet.App.
55, 58 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1996). Any reasonable doubt
regarding the degree of disability will be resolved in favor
of the claimant. 38 C.F.R. § 4.3 (1996).
When an unlisted condition is encountered it will be
permissible to rate under a closely-related disease or injury
in which not only the functions affected, but the anatomical
localization and symptomatology are closely analogous.
Conjectural analogies will be avoided, as will the use of
analogous ratings for conditions of doubtful diagnosis, or
for those not fully supported by clinical and laboratory
findings. 38 C.F.R. § 4.20 (1996).
Under Diagnostic Code 5257 a 10 percent rating contemplates
not more than slight recurrent subluxation or lateral knee
instability. The next higher evaluation of 20 percent
requires moderate recurrent subluxation or lateral
instability of the knee.
Diagnostic Code 5024 provides that tenosynovitis will be
rated on limitation of motion of affected parts, as
degenerative arthritis. 38 C.F.R. § 4.71a.
Diagnostic Code 5003 provides that degenerative arthritis
established by x-ray findings will be rated on the basis of
limitation of motion under the appropriate diagnostic codes
for the specific joint or joints involved. When, however,
the limitation of motion of the specific joint or joints
involved is non-compensable under the appropriate diagnostic
codes, a rating of 10 percent is for application for each
such major joint or group of minor joints affected by
limitation of motion, to be combined, not added, and rated as
a single disability under the diagnostic code for
degenerative or hypertrophic arthritis. Limitation of motion
must be objectively confirmed by findings such as swelling,
muscle spasm or satisfactory evidence of painful motion. 38
C.F.R. § 4.71a.
Limitation of motion of the knee is rated under Diagnostic
Codes 5260 and 5261, and a 10 percent evaluation is warranted
under these codes for a limitation of flexion to 45 degrees,
and a limitation of extension to 10 degrees respectively. 38
C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (1996).
With any form of arthritis, painful motion is an important
factor of disability. Facial expression and wincing on
pressure or manipulation, muscle spasm, sciatic neuritis, and
crepitation may be associated with arthritis of the spine.
The intent of the rating schedule is to recognize actually
painful, unstable, or malaligned joints as entitled to at
least the minimum compensable rating for the joint. 38
C.F.R. § 4.59.
In this case, the veteran’s bilateral tendonitis of the knees
is objectively productive of pain, and tenderness. Each
knee, however, is able to demonstrate full extension, and
almost complete flexion. Hence, a compensable evaluation is
not warranted under either of the diagnostic codes for
limitation of knee motion. Moreover, as the veteran’s knees
are described as stable there is no basis for a compensable
evaluation under Diagnostic Code 5257. Still, in view of the
objective verification of painful symptomatology and
tenderness at the May 1996 VA examination, the Board finds
that under the interpretation of 38 C.F.R. §§ 4.40, 4.45, and
4.59 that was announced in DeLuca that a 10 percent rating is
warranted for each knee. However, in the absence of greater
objective evidence of painful symptomatology in each knee
such as disuse atrophy, swelling, etc, the Board finds that
an evaluation in excess of 10 percent is not warranted for
either knee.
ORDER
Entitlement to separate 10 percent evaluations for the
veteran’s bilateral knee tendonitis is established subject to
the laws and regulations governing the award of monetary
benefits.
DEREK R. BROWN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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